Condemnation Actions: How Valuable Is Your Evidence of Property Value?

By: Erica Stutman

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When a government condemns (takes) private property for a public use, the property owner is entitled to receive “just compensation” equal to the property’s market value. Value is typically determined by appraisals, but if the parties cannot agree, a judge or jury will determine the amount in a condemnation lawsuit. The parties may seek to present various forms of evidence of value, though it will be admissible only if the evidence is relevant and its value is not substantially outweighed by the risk of causing unfair prejudice, confusion, undue delay or waste of time, does not mislead the jury, and is not needlessly cumulative.… Read More »

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Forcible Entry and Detainer Actions: Courts May Not Consider Tenant’s Hardship

By: Erica Stutman

If you own property and a tenant wrongfully refuses to vacate the premises (for example when the lease expires or after proper written notice of termination), you may have a quick and easy remedy to have the tenant removed. Arizona’s forcible entry and detainer (FED) statute allows a person to bring a speedy, summary action to obtain an order that the person must leave the property immediately. See A.R.S. § 12-1171 – 1183.  To allow for quick resolution, the only question a court may consider in a FED action is who has the right of possession of the property. … Read More »

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Hold that paintbrush! A glimpse into design-control in planned communities

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By: Erica Stutman

You are choosing a new paint color for the outside of your house, and you think, “Since all the other houses are beige, I’ll do mine purple.” Not so fast – you better check your community’s governing documents before brushing on that first coat of paint.

If you live in a planned community, you’ve probably seen a Declaration of Covenants, Conditions, and Restrictions (or similarly-titled document) (CC&Rs), which established the community and a homeowners’ association to govern it. Among other things, CC&Rs often allow for the creation of a design-review or architectural committee to act on behalf of the association, giving the committee members broad discretion to review and approve homeowners’ plans to modify their properties.… Read More »

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School district’s condemnation of a private road passes the test

By: Erica Stutman

The power of eminent domain allows a government or quasi-governmental entity to condemn (take) private property for a public use upon a showing of necessity.  In exchange, the property owner must receive “just compensation” equal to the property’s fair market value, and may be entitled to additional damages, such as severance damages, relocation expenses, costs, or interest.  The eminent domain powers of school districts and other political subdivisions is set forth in A.R.S. § 12-1111.

In Catalina Foothills Unified School District No. 16 v. La Paloma Property Owners Association, the Arizona Court of Appeals confirmed that a school district may condemn a private road for vehicles to enter a school campus. … Read More »

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A Purchaser Who Doesn’t Inquire May Be Teeing Up For Failure

 

By: Erica Stutman

Picture this:  While on the hunt for new development opportunities, you stumble across a golf course in the middle of a high-end community, and you think this would be the perfect spot for more houses, or a retail center, or a movie theater, or …oh, the possibilities are endless!  Better yet, you learn you can buy it for a bargain. Before closing the deal, you review the property’s recorded chain of title and find nothing requiring the property to be used as a golf course. You sign the closing papers and start planning your perfect new development.… Read More »

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Landlords Need Not Deny Puppy Love

By: Erica Stutman

Dog-lovers will be happy to know they may rent property to a tenant and the tenant’s dog without necessarily being subject to strict liability if man’s best friend turns out to be not-so-friendly after all.  In Spirlong v. Browne, the Arizona Court of Appeals decided that the strict liability for injuries or damages caused by a dog that is imposed upon a person “keeping” a dog requires that the person exercises care, custody, or control of the dog, and that merely allowing a dog to live in your property does not alone subject a person to liability.  … Read More »

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Real estate salesperson succeeds in mission to collect commission

By: Erica Stutman

A.R.S. § 32-2152 allows a real estate broker or salesperson to file a court action to collect earned compensation if he was a “qualified licensed broker or salesperson at the time the claim arose.”  In Focus Point Prop., LLC v. Johnson, 689 Ariz. Adv. Rep. 4 (June 19, 2014), plaintiff Cleo Johnson tested the meaning of a “qualified” licensee, arguing that her salesperson was not entitled to his commission because his license could have been revoked at the time he performed his services.

In 2009, Johnson, trustee of a trust, hired Jeff Kantor from Focus Point Properties to sell a commercial property owned by the trust and also to assist with rehabilitation activities and leasing.  … Read More »

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Brandt Revocable Trust v. U.S. – the United States’ theory of land ownership derailed

By: Erica Stutman

In Brandt Revocable Trust v. U.S., the United States Supreme Court held that abandoned railway rights-of-way that had been granted to railroad companies under the General Railroad Right-of-Way Act of 1875 left underlying landowners with property free of the rights-of-way, and the United States government has no interest in the abandoned land.

Pursuant to the Act, the government granted railroad companies the right to build railroads through public lands.  In large part, the government later conveyed the public land underlying the rights-of-way to private landowners by a land patent, which stated that the land was conveyed subject to a right-of-way for railroad purposes.… Read More »

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Frustration of Purpose: A Frustrating Doctrine

By: Erica Stutman

Next Gen Capital, LLC v. Consumer Lending Associates, LLC illustrates the difficulty a tenant faces when trying to avoid liability for breaching a lease based on the “frustration of purpose” defense. No. 1 CA-CV 12-0624 (Ariz. Ct. App. Dec. 19, 2013).  In 2007, Consumer Lending Associates (“CLA”) signed a five-year lease, which limited CLA’s primary use of the premises to operating its “payday loan” business.  CLA was operating pursuant to an Arizona statute, which, by its terms, expired on July 1, 2010.  When the authorizing statute expired, CLA vacated the premises and refused to pay rent due through the end of the term, claiming that the lease terminated “by operation of Arizona law.”  The landlord sued for breach of contract, and the superior court granted a motion for summary judgment, holding that CLA had to pay unpaid rent and relates charges through the end of the lease term. … Read More »

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Understanding zoning nonconforming uses is no walk in the park, but a mobile-home park may be treated as a unified use.

By:  Erica Stutman

When Arizona municipalities adopt new zoning ordinances and regulations, existing property owners have the right to continue using their property for the use in place when the new ordinance or regulation becomes effective, including the right to make reasonable repairs and alterations.  See A.R.S. § 9-462.02(A).   This right to continue the “legal nonconforming use,” which is premised on due process concerns, may be lost if the owner makes major changes to the property after the new zoning law takes effect.  When property is divided into smaller units, questions may arise as to what constitutes the prior use and what changes destroy the protected status. … Read More »

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Broker Beware?

By: Erica Stutman

While oral contracts are often enforceable, certain categories of contracts must be documented in a signed writing or an action for breach of the contract will be barred by the statute of frauds.  See A.R.S. 44-101 for Arizona’s statute of frauds.  The statute of frauds plays an important role in real estate transactions, as agreements for the sale of an interest in real property and for leases longer than one year fall within the statute, as do most real estate broker or agent agreements.  A less obvious category that may affect a real estate agent or broker’s ability to collect commissions is an agreement which is not to be performed within one year from the date the agreement is made.… Read More »

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